In Re Marriage of Smith

APPEAL from the Circuit Court of Will County; the Hon. THOMAS
W. VINSON, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Petitioner, Barbara Smith, filed a petition for legal separation, amended by interlineation to a petition for dissolution of marriage, in the circuit court of Will County against the respondent, Donald C. Smith. After a hearing on the matters of distribution of property and appropriateness of maintenance, the trial court affirmed its previous judgment for dissolution of marriage, distributed various properties and awarded maintenance in gross as hereinafter set forth. Petitioner perfected this appeal from the property distribution and maintenance provisions of the decree.

The Smiths were married on June 29, 1950, in Manistee, Michigan, and have two children, both of whom are emancipated but continue to reside with their mother. Petitioner, a graduate of Purdue University, was employed as a teacher and by two major oil companies during the first four years of the marriage. Respondent was employed as a pilot for United Airlines in 1952, and the couple, after several earlier relocations, purchased a home in Plainfield, Illinois, in 1954.

In February 1969, the Smiths opened a liquor store in Plainfield. Petitioner was active in the operation of the business until October 1974 and clerked, kept books, and, along with respondent, did janitorial work. Other than her work in conjunction with the liquor store and as a part-time income-tax preparer, petitioner has remained unemployed since 1954.

In October 1974 the parties separated and petitioner continued to occupy the Plainfield residence with the then minor children. Complaints for divorce and separate maintenance were filed by the parties but dismissed for want of equity.

In January 1976 respondent suffered a heart attack and was subsequently retired by United Airlines as being totally disabled to pilot an aircraft. Respondent receives a disability pension of $2,367 and social security payment of $436 per month. The liquor store is currently operating at a loss, and the income from a rental property is not referenced in the record.

On appeal, petitioner contends the trial court erred in finding respondent's disability pension and loss-of-license insurance are not marital property, and that its division of life insurance policies, award of maintenance in gross, and overall division of marital property are against the manifest weight of the evidence.

"(a) For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':

(1) property acquired by gift, bequest, devise or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) the increase in value of property acquired before the marriage; and

(6) property acquired before the marriage.

(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section."

It can thus be seen that all property acquired after marriage and before dissolution of marriage is marital property, unless it falls into a category excepted by the statute. As the subject disability pension does not expressly fall into an excepted category, it constitutes marital ...

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